Contesting a Will (or contentious probate as it is often known) is sadly becoming increasingly common. Ministry of Justice statistics from 2017 showed a 300% increase, compared with 10 years earlier, in inheritance disputes handled by the High Court. Increasingly complex family structures, property price increases and the growing trend for DIY wills are just three of the reasons for the growth in this area of work.
Contesting a Will is however a specialist area of law and we strongly recommend that if you are thinking of Contesting a Will or getting involved in an Inheritance dispute, you need to choose a Lawyer who is really experienced in this area.
We have the expertise you need. Our Inheritance Claim Lawyers deal with Contested Wills locally throughout Wiltshire, Hampshire, Somerset and Dorset and nationally throughout England and Wales from our offices in Salisbury, Andover, Fordingbridge and Amesbury.
Thinking of contesting a will? Our highly experienced team offer FREE initial phone advice with no strings attached. Call on FREEPHONE 0800 1404544 now.
Common Reasons for Contesting a Will
- Inheritance Claims– claims that dependants or family did not get ‘reasonable financial provision’ from the deceased’s estate under the Will or the intestacy rules (under the Inheritance Act 1975) – see below for more information. Such claims need proof that the person making the claim was financially dependent on the testator before they died. This is a complex legal area in which you should seek professional legal help from specialist probate solicitors immediately
- Claims that the will does not allow for gifts promised by the testator (ie the person making the will) before they passed on
- Professional negligence claims against solicitors or Will writers arising from negligently drafted Wills.
- Disagreements with or between between executors – click here to read more about executor disputes
- That the deceased lacked mental capacity when making the Will. Firstly, the testator must understand the nature of making the Will. Secondly, they must understand how much property they are giving away. Thirdly, they must know the claims which they are giving effect. If the testator has dementia or Alzheimer’s, their Will is much more likely to be contested
- That the testator made the Will under duress or undue influence. This occurs the person writing their own Will is pushed to alter their Will, usually in favour of the person who is putting the pressure on them.
- That the Will was fraudulent. This may be caused by an altered signature or destroyed will.
- That the Will was not validly made in the first place – or was badly drafted, containing errors or not making the position clear
- That the will was wrongly executed – i.e. not completed as specified in the Wills Act. A correctly executed Will must be written, dated, signed and witnessed by two independent witnesses (non-beneficiaries)
- That the Will had already been revoked and is not effective
- That the Will is not the last Will of the deceased
Time limits for Making Your Claim
Time limits (as set out in the Limitation Act 1980) vary considerably according to the type of claim. Time limits in bringing any type of contested probate or inheritance claims are, however, strictly enforced. So it is critical that you get the right specialist legal advice as soon as possible.
In general, however, the main time limits for bringing any will contest claim are as follows :-
- For a beneficiary claiming against an estate – 12 years following the date of death of the testator
- For a dependency claim for maintenance under the Inheritance Act – 6 months from the grant of probate itself
- For will fraud -there is no time limit in cases of fraud involving wills
Our advice is simple – don’t risk losing your right to make a claim – get specialist legal advice ASAP.
How much does Contesting a Will cost?
We offer a FREE initial telephone consultation.
At that stage our solicitors should be able to give you an estimate of our legal fees. You can then choose whether to go ahead with contesting the Will and decide whether you wish to instruct our Inheritance Solicitors.
Inheritance Act claims – Contesting a will due to inadequate provision
Many people believe that whatever a person writes in their will must be stuck to and cannot be changed. This is only partly true. Not only can a will be altered after the testator’s death [provided that all beneficiaries who are left worse off by any changes agree], but it’s also a legal requirement under the Inheritance (Provision for Family and Dependants) Act 1975 for a testator to make sure that certain classes of people are left with ‘reasonable financial provision’. If this has not been done, it may be possible to challenge a will.
›Who might make a claim?
Those who can apply to challenge a will include;
- a spouse or civil partner
- a former spouse or civil partner who did not remarry or enter a new partnership
- a child
- a step-child or adopted child or someone treated as a child of the deceased
- someone being maintained by or looked after by the deceased
- anyone else who lived with the deceased for a period of two years before their death
If you fall into any of these groups and feel you have not been properly provided for in a will, you may be able to challenge that will.
›Inadequate provision claim – what does the court look at?
The court takes a number of different factors into account when if there has been ” inadequate provision” including the following;
- The financial resources of the applicant
- Their applicant’s predicted future financial situation
- The deceased’s obligations and responsibilities towards the claimant
- The size and nature of the estate which was left in the will.
In the case of children, things are dealt with much more carefully. The education and training of the child is always considered, and for children who are not biologically related to the deceased, things can be trickier. For example, it will be considered whether or not the deceased had assumed responsibility for the child’s maintenance and upbringing and for how long this was carried out – as well as whether this was done with the knowledge that the child was not a biological relative.
The court will also take into account the new situation for the child in terms of who is then liable to maintain and look after him or her.
What is a Probate Caveat?
If you are thinking of disputing a will, you can apply for a caveat. This means that no action can be taken in relation to the probate without first notifying you. It also sets into motion the legal process of the inheritance claim. You are advised to apply for a caveat as soon as you can.
Assets Transferred Prior To Death – Was It Suspicious?
Occasionally, after someone close to you has passed away, you might discover that they have transferred some of their assets to someone else prior to their death. Sometimes they will have had good reason for doing this with no cause for concern. However, if the transfer of assets seems out of character for them – and especially if they were elderly or vulnerable – it may help you to speak to a solicitor.
For instance, if you are worried that the person in question was unduly influenced and coerced into transferring over their assets, you may be able to contest the transaction. Also, if you suspect fraud or if the person did not have the capacity to make the decision over what to do with their assets, you may also have a case and so should seek legal advice.
Cases of assets transferred prior to death can often be complicated, especially as it isn’t always clear whether the assets in question were transferred willingly or not. This is why it is so important that you take specialist legal advice so you can find out more about your options and have your solicitor investigate the case to make sure the right steps are taken.
Challenging Wills and Professional Negligence Claims
If a Will has been negligently drafted by a solicitor or Will writer, then there may be a professional negligence claim available to those who have lost out.
Amongst examples of mistakes which can arise in Will drafting and which can lead to a negligence claim for negligence are:
- The Will is does not reflect the deceased’s wishes and causes a loss to a beneficiary
- Poor drafting results in the Will containing clauses which contradict the deceased wishes.
- The Will was drafted when the testator was without sufficient mental capacity (a legal requirement)
- The Will was not correctly executed, for example it was not signed in the presence of two witnesses (a legal requirement)
- The testator died before the Will was correctly executed due to a delay in completing the drafting by the solicitor or Will writer involved
Alternatively a claim for negligence could be brought in regard to a professional executor or administrator of the trust. This could be on the grounds of mishandling the assets i.e. a failure to invest them correctly.
Click here to read more about suing your solicitor for negligence